June 24, 2009

Filing Copyrights: How and Why or Just Do It!

6 min

Almost every day an artist or writer calls my office with a 100-percent, knock-down, dead-on, no-lose copyright infringement case- and I have to tell them it is not worth their while. Even in those situations in which there is no question that someone reproduced artwork without authorization or exceeded the license provided to them and that the artist owned the rights- even when the infringer admitted the infringement- I still have to turn down the case.

Why? Because the artist (or copyright owner) had not filed a registration with the Copyright Office of the Library of Congress prior to the infringement.

What difference does filing with the Copyright Office make? All the difference in the world. Registration provides the artist with three important rights: the right to file suit, the ability to recover statutory damages and the right to ask the court to force the infringer to pay the artist's attorneys' fees if she prevails.

Copyright in any work of visual art is obtained by the creator the moment the image is fixed in a tangible form. The copyright is then owned by the artist for the rest of his or her life, plus 70 years from the date of death. Because copyrights continue to exist after the creator's death, they can be conveyed in a will.

Up until March 1, 1989, a copyright notice (©, name, year) appearing on the work was an absolute requirement. Prior to that date, if you had "published" (which, in this sense, means "offered copies for sale") a work without a copyright notice on it somewhere, the artwork automatically entered the public domain, which means that the U.S. creator/copyright owner automatically lost all rights to the work and anyone could use the image in any manner without paying or seeking the artist's permission.

After March 1, 1989, the publishing of an artwork without a copyright notice did not place it in the public domain. All rights still remained with the artist. However, without a notice, infringers can claim to be "innocent infringers," meaning that they did not realize the work was protected by copyright. While a court may order an innocent infringer to cease and desist from using your image, you might not get any damages. Therefore, even today it is very important that a copyright notice be affixed to each and every sculpture you send out into the marketplace.

Section 411 of the copyright law clearly states that the work must be registered before a U.S. copyright owner can file a lawsuit. However, you can file a registration anytime and file suite immediately thereafter. Under Section 411, all that the lack of registration does is delay a lawsuit until you register the work and increase costs for an expedited filing $730 versus $45).

Section 412 of the act is the real problem. Attorney's fees and statutory damages are available to injured artists only if they have filed for registration before the infringement occurred. If a work is registered after the first act of infringement, you are entitled only to "actual damages." Actual damages are the amount you as an artist lost (i.e., your licensing fee) or the profits that the infringer made. Figuring out how much the infringer made from, say, one reproduction of your work in a calendar, magazine or any other project is difficult and the amount is often not substantial. If you factor in the cost of even the most reasonable attorney's fees, the costs of the lawsuit will almost always be more than the amount you will win. That's why I turn away knock-down, dead-on cases: my client would win but lose money in doing so.

On the other hand, if you had registered the work prior to the infringement, you could be awarded statutory damages. Statutory damages are damages assessed by the judge without regard to actual damages, awards that come from the judge's gut feelings. If the judge is convinced that an infringer intentionally infringed on your work, a judge may award a artist up to $150,000 per infringement, no matter how minimal the actual damages. Additionally, a judge has the discretion to award you payment for your attorney's fees. In such a case, an artist whose works have been infringed can go after the infringer without regard to the actual damages. This way, a lawsuit that is viable on the merits also becomes financially sound.

How to File

The copyright registration process is easy. Simply file a form TX, which is a relatively easy form to complete. After doing it once, you can do it by rote. If the artwork or sculpture being registered has already been published, mail the completed application to the Copyright Office with two sets of photos (hard copy or on CD), depicting the work and if a sculpture with the front and back of the work and a $45 registration fee. If the work was published before 1989 your deposit materials must show the copyright notice.

At this point, I can hear many of you calculating how many hundreds of works you've created and multiplying by $45 and deciding you can't afford it. But there's a trick. Unpublished works- which would be any art work or sculptures that you have created but from which you have not created an edition or offered the copies for sale- can be registered together as a collection. To do this, simply take all the works you want to register, photograph them, pop them into a binder or burn on a CD, and give the collection a single title. Since the works are unpublished, you only have to supply the Copyright Office with one copy of each work. One application, one $45 filing fee and hundreds of works can be registered at once. (To obtain the registration forms as well as free helpful brochures, visit their web site at, www.copyright.gov/forms. There are now procedures for registering collections of published photographs on one application (www.copyright.gov/fls/fl124.html) and perhaps, if the circumstances are correct a large selection of published works (by one artist) which appeared together in a catalogue.

The Copyright Office began a practice, in which it has agreed to accept videotapes of unpublished works as deposit material for a collection. That means you can lay out your hundreds of works, slowly pan them with a camcorder so that each images gets enough screen time to be identifiable, and file your collection of unpublished works on tape with one application and one $45 registration fee, protecting each image on the tape.

Many of us have fought for the repeal of sections 411 and 412 so that artists would be entitled to statutory damages and attorney's fees without having to register, but the powers that be have buried the bill for the foreseeable future.

In light of registration's great benefits, low cost and simplicity, it is foolhardy for any artist not to register his or her works before they're put into the marketplace. The benefits are real. And the detriments of non-registration are disastrous.